April 06, 2015 Practice Points

Indiana Amends RFRA Bill, Marking Potential New Era of Protections

The governor and legislature of Indiana have quickly pulled an about-face.

By Nancy Marcus – April 6, 2015

Five days after Governor Pence signed Indiana’s Religious Freedom Restoration Act (RFRA), after a national outcry from those perceiving the legislation as targeted at and facilitating anti-LGBT discrimination, Pence, in a breathtaking about-face, ordered his legislature to fix the act to make it clear it could not be used to authorize discrimination after all. On April 2, 2015, the legislature, as ordered, approved new language to Indiana’s RFRA that clarifies that the act does not authorize refusals of services in public accommodations, or discriminatory treatment in housing and employment contexts, on the basis of protected categories including sexual orientation and gender identity. Governor Pence promptly signed the new version of RFRA into law.

The new language marks the first time that any Indiana statute has included explicit protections against sexual orientation and gender discrimination in its statutes. As for the dramatic reversal by Governor Pence and the legislature, which were well aware of LGBT-rights-based objections to the legislation prior to its passage, their new willingness to incorporate protections against LGBT discrimination into Indiana statutes may even extend to a revision of the state’s civil-rights laws to finally include sexual orientation and gender identity as protected classes. That development will not occur, however, until the next legislative session in Indiana, and will only transpire if voter and business community support for LGBT rights continues to override conservative inclinations against providing such protections.

In the meantime, there are over two dozen other states in the country that similarly lack civil-rights protections against LGBT-discrimination, and the federal Employment Non-Discrimination Act remains stalled out in no small part because of religious exemption language in the act, which will, after the Indiana uproar, be likely viewed more of a poison pill than ever.

Keywords: litigation, civil rights, RFRA, LGBT, First Amendment

— Nancy Marcus, LL.M., S.J.D., assistant professor of law, Indiana Tech Law School

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